Recently, an ideological dialogue happened in the Indian Supreme Court on Article 39(b) of the Constitution. The judgment by a nine-judge Bench in Property Owners Association v. State of Maharashtra last Tuesday reflects a division of opinion on the topic, though the majority on the Bench laid down the law.

Constitutional socialism, like political socialism, has remained a controversial issue in the Indian juridical discourse. Article 39(b) of the Constitution, together with other provisions under the directive principles in part IV of the Constitution, embodies an idea of constitutional socialism. This, however, is a contested argument. To understand the legal and political ramifications of the verdict, let us now examine the crux of the judgment.

The Fundamentality Of Directive Principles

The Court in the current case broadly did two things. First, it said that the annulment of certain amendments made to Article 31-C of the Constitution would not nullify Article 31-C in the unamended form. This is the Article that gives immunity to certain laws from judicial review if the laws are made to further the directive principles of state policy stated in the Constitution. The Article says that such laws cannot be assailed on grounds of violation of the equality clause (Article 14) or the freedom clause (Article 19) in the Constitution. This signifies the fundamentality of directive principles in the process of governance, which are otherwise not enforceable. This takes us to the second and the more vital part of the judgment. The majority held that the interpretation given to Article 39(b) of the Constitution by Justice Krishna Iyer in a minority judgment in 1977 in Ranganatha Reddy endorsed by the five-judge Bench in Sanjeev Coke (1982) was not good law on Article 39(b). Thus, the Court overturned the precedential materials in the Article that gave an expanded connotation to this constitutional provision.

Article 39(b) says that the State shall strive for policy to secure that “the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. In a minority judgment in State of Karnataka v. Ranganatha Reddy (1977) Justice Krishna Iyer analysed the Article and said that all individual wealth is part of the community’s wealth and therefore, private property is well within the ambit of “material resources of the community”. He said that “material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions”. He added that “to exclude ownership of private resources from the coils of Article 39(b) is to cipherise its very purpose of redistribution the socialist way”. This minority verdict in Ranganatha Reddy was endorsed by a five-judge Bench in Sanjeev Coke. Thus, the minority verdict [which essentially has not expressly disagreed on the point of Article 39(b)] got an authoritative endorsement in Sanjeev Coke. This interpretation was validated in a series of judgments that followed Sanjeev Coke. Thus, the ”Krishna Iyer doctrine”, as CJI Chandrachud calls it, got judicially reaffirmed.

What Ambedkar Said 

It is this constitutional landscape that is now thoroughly altered by the majority judgment in the Property Owners Association case. According to CJI Chandrachud, Dr. B.R. Ambedkar did not perceive the Article in the way Krishna Iyer did. Relying on the reply given by Dr Ambedkar to Prof. K.T. Shah in the Constituent Assembly, Justice Chandrachud said that the Court is unable to subscribe to “the expensive view” of Justice Iyer. He wrote: ”…(T)his Court must not tread into the domain of economic policy, or endorse a particular economic ideology while undertaking constitutional interpretation”.

The counter view on Article 39(b) is well reflected in Justice Dhulia’s minority view. He endorses Krishna Iyer’s approach on the ground that the Constitution in general and the directive principles [including Article 39(b)] are essentially socialist in their tone and tenor. Curiously again, Justice Dhulia relies on Dr Ambedkar’s reply (relied on by Chandrachud) to say quite the opposite of what Justice Chandrachud said. According to him, the very scheme of the directive principles reflected the idea of constitutional socialism. He also relied on Ambedkar’s famous speech in the Constituent Assembly on November 25, 1949, underscoring the absence of socio-economic equality in the country. He also put forward a blunt commonsensical reading of the Article, saying that for utilising public assets for public good, no constitutional provision is required, and the very purpose of Article 39(b) is to empower the state to ensure public good by resorting to privately owned resources. He said public property will be used for public good only, even if it is not contemplated in the directive principles. Criticism of the ‘Krishna Iyer doctrine’ by Chief Justice Chandrachud is not endorsed by Justice Nagarathna either, though the judge agreed substantially with the majority judgment.

Law, Politics, And The ‘Iyer Doctrine’ 

It is necessary to understand the constitutional, political and economic context in which the ‘Iyer doctrine’ evolved. The era of Land Reforms Acts by different states, laws for abolition of the Zamindari system and privy purses, and nationalisation of private banks were all developments that facilitated a political climate of Nehruvian socialism that paved the way to the Krishna Iyer doctrine. Laws are essentially political statements made by the regime of the day. The preambular addition of the word “socialist” did not indicate anything new but only restated the socialist inclination of the Constitution, which was otherwise clear, as elaborated by Justice Dhulia in the present minority verdict.

The present judgment also held that Article 31-C in the unamended form will hold good. Certain additions to this Article made by way of the 42nd amendment in 1977 were struck down in the Minerva Mills Case (1980). The curious aspect, however, is that the Centre argued in favour of the State’s power to treat private properties as “material resources of the community”, relying on Krishna Iyer’s doctrine. This argument was repelled by the majority on the Bench. In an era of privatisation of public properties, this gesture may appear to be a bit ironic.

At any rate, the present regime at the Centre is not a proponent of Nehruvian socialism. Political and ideological shifts play a big role in determining what the Constitution means, what it says and how it is invoked. The distance that the nation has travelled since 1977 is reflected in the Property Owners Association case and the dissent in the judgment shows the other side of the coin. The judgment will carry forward the eternal discourse on the socialist traits in the country’s Constitution. The juridical discourse on the topic underlines the quality of deliberative democracy within the system of judiciary.

(Kaleeswaram Raj is a lawyer at the Supreme Court of India)

Disclaimer: These are the personal opinions of the author

Mumbai:

Hoping to repeat the BJP’s success in Haryana, the ruling BJP-Shiv Sena-NCP coalition in Maharashtra, which is seen as facing an uphill battle in the Assembly polls expected to be held later this year, has reached out to two key groups – the Scheduled Castes (SC) and Other Backward Classes (OBCs).

On Thursday, the Maharashtra cabinet took several key decisions, including approving an ordinance giving constitutional status to the state Scheduled Caste Commission and giving its nod to a proposal urging the Centre to hike the income criterion for inclusion in the creamy layer among OBCs from Rs 8 lakh a year to Rs 15 lakh.

A statement from the office of Maharashtra Chief Minister Eknath Shinde said the cabinet approved a draft ordinance to accord constitutional status to the Maharashtra State Scheduled Caste Commission. The ordinance, the statement said, would be tabled in the next session of the state legislature and added that 27 posts had been approved for the panel.

A proposal to request the Union government to increase the income limit for inclusion in the ‘creamy layer’ category to Rs 15 lakh per year from the current Rs 8 lakh was also passed. 

A non-creamy layer certificate, stating that the family income of a person is below the prescribed limit, is needed to get reservation benefits in the OBC category.

Lok Sabha Learnings?

The opposition Maha Vikas Aghadi alliance in the state, which comprises the Congress, the Sharad Pawar faction of the NCP and the Uddhav Thackeray faction of the Shiv Sena, had stunned the ruling coalition, known as the Mahayuti, by winning 30 of Maharashtra’s 48 Lok Sabha seats. The BJP, whose tally was 23 in the last general elections, was reduced to just nine while the Ajit Pawar-led NCP managed to win only one seat.

One of the reasons attributed to the Maha Vikas Aghadi’s big victory was that it managed to get its caste combinations right and Thursday’s cabinet decisions are seen as a way of making a dent in that. The decisions are also being read as a means of blunting the Congress and the INDIA alliance’s attack on the NDA during the Lok Sabha elections that it wanted to end reservations and was seeking over 400 seats to do so. 

The BJP eventually managed to win 240 constituencies while the NDA was comfortably over the majority mark of 272 seats with a tally of 293. 

Ahead of the elections in Haryana, where the BJP was perceived to be on the back foot after ruling the state for two consecutive terms, the state government had hiked the creamy layer ceiling from Rs 6 lakh to 8 lakh. The decision is seen as having contributed to the party managing to defy exit poll predictions and beat anti-incumbency to win 48 seats, two more than the majority mark in the 90-member Assembly.

New Delhi:

Asserting that the idea of denying reservation to SCs and STs on account of the creamy layer concept is “condemnable”, Congress president Mallikarjun Kharge on Saturday said the government should have brought legislation in Parliament to nullify the part of the recent Supreme Court judgment that talks about the issue.

Mr Kharge said that while other aspects of the Supreme Court judgment were being deliberated upon by the party, the creamy layer concept that has been advocated should be nullified.

Earlier this month, a seven-judge Bench of the Supreme Court led by Chief Justice DY Chandrachud ruled in a 6:1 majority judgment that state governments were permitted to sub-classify communities within the SC list based on empirical data.

Supreme Court judge Justice B R Gavai had said that states must evolve a policy for identifying the creamy layer even among the Scheduled Castes (SC) and Schedule Tribes (ST) and deny them the benefit of reservation.

“Who do you want to benefit by bringing a creamy layer? By bringing a creamy layer (concept) on one hand you are denying untouchables and giving to those who have enjoyed privileges for thousands of years. I condemn this,” Mr Kharge told reporters here.

This issue of creamy layer that has been raised by the seven judges shows that they have not thought about SCs and STs in a serious manner, he said.

“Till the time untouchability exists, reservation should be there and will be there. We will fight for it,” Mr Kharge said.

The Congress president accused the BJP of seeking to end reservation.

The government has privatised the public sector jobs and there are a lot of vacancies, but they are not recruiting, Mr Kharge said.

“SCs and STs are not able to get jobs. No SCs are at the high-level positions. They are trying to suppress the SCs and STs by classifying them in a creamy layer,” he said.

“I found the court’s decision surprising. Those who are facing untouchability in real life and those people belonging to SCs and STs even on high posts are facing discrimination. If they have money even then they face discrimination,” Mr Kharge said.

“I would like to appeal that all people should unite and ensure that this judgment does not get recognition and this matter should not be raised again,” he added.

The Congress is discussing other things related to sub-categorisation and will decide on further steps after discussion with intellectuals and leaders of various states, he said.

“We will do everything possible for the protection of SCs and STs,” Mr Kharge said.

“I read that the PM said we will not touch this. To ensure that creamy layer (concept) will not be implemented, they should have brought (a legislation) in Parliament and nullified the Supreme Court judgment,” he said.

This government prepares bills in a few hours and now it has been about 15 days since the judgment, he said.

Mr Kharge’s remarks come a day after the Union Cabinet asserted that there was no provision for a creamy layer in the reservation for SCs and STs in the Constitution given by B R Ambedkar.

The Union Cabinet, at a meeting chaired by Prime Minister Narendra Modi on Friday, held a detailed discussion on the Supreme Court judgment on the sub-categorisation of reservation for SCs and STs as granted in the Constitution.

“It is the well thought view of the Union Cabinet that the NDA government is firmly committed to the provisions in the Constitution given by Dr Babasaheb Ambedkar,” Information and Broadcasting Minister Ashwini Vaishnaw told reporters here. 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

The Supreme Court Collegium headed by Chief Justice of India D.Y. Chandrachud on Thursday recommended to the government the appointment of three new Chief Justices to the High Courts of Uttarakhand, Orissa, and Meghalaya.

The Collegium has largely followed the norms of merit, seniority, and integrity of the judges in its recommendations.

It has recommended the appointment of Justice Ritu Bahri as the Chief Justice of the Uttarakhand High Court, an office that has been vacant Justice Vipin Sanghi retired on October 26. Justice Bahri is the senior puisne judge of the High Court of Punjab and Haryana, and has been serving on the Bench since August 16, 2010.

The Collegium has proposed Justice Chakradhari Sharan Singh as the Chief Justice of the High Court of Orissa, a post that has been vacant since October 3 following the retirement of Justice Subhasis Talapatra. Justice Singh is the senior puisne judge in the Patna High Court.

Justice S. Vaidyanathan of the Madras High Court has been recommended for appointment as Chief Justice of the Meghalaya High Court. The post of the Meghalaya top judge became vacant with the retirement of Justice Sanjib Banerjee on November 1.

The Collegium, in its resolution, noted that while recommending Justice Vaidyanathan’s name, it has taken into consideration the fact that the “Madras High Court which is one of the largest High Courts in the country, is presently represented by only one Chief Justice among the Chief Justices of the High Courts”.

New Delhi:

The Supreme Court on Friday refused to entertain a PIL seeking an independent audit of source code of the electronic voting machines (EVMs) used by the Election Commission, saying no “actionable material” was placed to indicate that the poll panel was in breach of its “constitutional mandate”. Observing that it will not venture into the “policy issue”, the Supreme Court dismissed the PIL which had also sought a direction to the poll panel to put in the public domain the audit report, if any, of EVM’s source code.

“The Election Commission of India (ECI) is entrusted constitutionally with superintendence and control over the conduct of elections. Presently, the petitioner has placed no actionable material on the record in this court to indicate that the ECI is actually in breach of its constitutional mandate,” a bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said in its order.

The bench said the manner in which the source code should be audited and whether the audit report should be placed in public domain falls within the domain of the poll panel.

“On such a policy issue, we are not inclined to issue a direction of this sort which has been sought by the petitioner. There is no material before this court at this stage to indicate that the Election Commission is not taking suitable steps to fulfil its mandate,” the bench said while dismissing the PIL filed by an individual named Sunil Ahya.

The source code is a set of instructions and statements of a programmer using a computer programming language.

The ‘Hash functions’ are used to digest or condense a message down to a fixed size which can then be signed in a way that makes finding other messages with the same hash extremely difficult.

During the brief hearing, the bench referred to certain things related to the functioning of the Supreme Court and said it recently allowed electronic passes for entering into the Supreme Court. “If I start putting out what is source code in public, you know, who will be able to hack that,” the CJI said.

Before filing the petition, PIL petitioner Ahya had made representations to the Election Commission seeking an independent audit of the source code of the EVMs.

“The source code is the brain behind the EVM and it is about survival of democracy,” Ahya said.

Ahya had earlier moved the petition before the general elections in 2019. The court had then said in view of the announcement of the general elections it was not possible to go into the issues raised in the PIL.

It had, however, granted Ahya the liberty to file a fresh plea if a new cause of action arises.

After that, another fresh PIL was instituted and the bench had permitted Ahya to make a representation to the EC.

In the third plea, the PIL petitioner said he also made some representations to the poll panel and was still in the dark on what steps have been taken on the issue.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)